Clay v. Eighth Judicial Dist. Court of State

• Decision Date: 11 July 2013
• Docket Number: No. 61986.,61986.
• Citation: 305 P.3d 898,129 Nev. Adv. Op. 48
• Parties: Bryan CLAY, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, in and for the COUNTY OF CLARK; and The Honorable James M. Bixler, District Judge, Respondents, and The State of Nevada, Real Party in Interest.
• Court: Nevada Supreme Court

305 P.3d 898

129 Nev. Adv. Op. 48

Bryan CLAY, Petitioner,

v. The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, in and for the COUNTY OF CLARK; and The Honorable James M. Bixler, District Judge, Respondents,andThe State of Nevada, Real Party in Interest.

No. 61986.

Supreme Court of Nevada.

July 11, 2013.

Patti, Sgro & Lewis and Anthony P. Sgro, Las Vegas; Christopher R. Oram, Las Vegas, for Petitioner.

Catherine Cortez Masto, Attorney General, Carson City; Steven Wolfson, District Attorney, and Jonathan E. VanBoskerck, Chief Deputy District Attorney, Clark County, for Real Party in Interest.

BEFORE GIBBONS, PARRAGUIRRE and DOUGLAS, JJ.

OPINION

By the Court, DOUGLAS, J.:

Nevada law requires a district attorney to “inform the grand jurors of the specific elements of any public offense which they may consider as the basis of the indictment.” NRS 172.095(2). In this original writ proceeding, we consider whether the district attorney violates this requirement when he or she seeks an indictment for child abuse or neglect under NRS 200.508(1) based on a nonaccidental physical injury but fails to inform the grand jurors of the definition of “physical injury” set forth in NRS 200.508(4)(d). We conclude that regardless of the theory pursued under NRS 200.508(1), “abuse or neglect” is an element of the offense and that when the alleged “abuse or neglect” is based on a nonaccidental physical injury, the district attorney must inform the grand jurors of the statutory definition of “physical injury” because that definition is more limited than the meaning that a layperson would attribute to the term. Because the failure to inform the grand jurors of the statutory definition of “physical injury” likely caused the grand jury to return an indictment on less than probable cause for one of the two counts of child abuse, we grant the petition as to that count.

FACTS AND PROCEDURAL HISTORY

Petitioner Bryan Clay was indicted by a grand jury for two counts of child abuse and neglect in violation of NRS 200.508(1), for slapping and hitting his 16–year–old girlfriend on February 14, 2012 (count one), and March 15, 2012 (count three). The only witness to testify before the grand jury about the events which transpired in February and March was Clay's girlfriend, E.F.

E.F. was pregnant with Clay's child. The first charged incident of abuse occurred two days after she told him about the pregnancy. Clay slapped her across the face during an argument. The second charged incident occurred the following month. After the couple attended a prenatal appointment, E.F. told Clay that she did not want to be with him anymore, and Clay told her that if she left him, he would kill himself. As E.F. walked away, Clay walked up behind her, grabbed her by the neck with one hand, choked her, and threw her into a gate. When E.F. continued to ignore him, he started hitting her with a closed fist in her face, legs, arms, stomach, and back. E.F. fell to the ground and covered her stomach with her hands. Clay then grabbed her by the hair and shoved her face into the concrete. Clay tried to move E.F.'s hands from her stomach and told her that if he could not have her and his child, then he did not want anyone else to have them either. When a woman came over to tell him to stop, Clay took E.F.'s purse and left. By the time E.F. got home, the police had already arrived. E.F. testified that she attempted to tell the police what happened, but she still could not breathe. An ambulance took E.F. to the hospital, but she did not stay. There was no testimony about the nature of E.F.'s injuries resulting from either of the altercations.

Following the return of the indictment, Clay filed a pretrial petition for a writ of habeas corpus challenging the indictment on two grounds. First, he argued that there was insufficient evidence to support a finding of probable cause as to the two counts of child abuse and neglect because there was no evidence of a nonaccidental physical or mental injury and therefore the State failed to prove that abuse or neglect occurred. Second, he argued that the State failed to comply with the requirements of NRS 172.095(2) by not instructing the jury on the definition of “physical injury” as used in the applicable child-abuse-and-neglect statute. In its response, the State argued that the “showing of physical or mental injury is not a requirement” of the child-abuse-and-neglect statute; rather, the mere possibility of physical or mental injury is sufficient. The State did not respond to Clay's NRS 172.095(2) argument. The district court orally denied the petition with little analysis or explanation other than observing that the child-abuse-and-neglect statute “is a very liberally-written statute, and probably for good reason” and summarily agreeing with the State's argument. Like the State, the district court did not discuss the merits of Clay's NRS 172.095(2) argument. Clay then filed this original petition for a writ of mandamus or prohibition challenging the district court's decision.

DISCUSSION

A writ of mandamus may issue to compel the performance of an act which the law requires “as a duty resulting from an office, trust or station,” NRS 34.160, or to control an arbitrary or capricious exercise of discretion, see Round Hill Gen. Improvement Dist. v. Newman, 97 Nev. 601, 603–04, 637 P.2d 534, 536 (1981).¹ The writ will not issue, however, if the petitioner has a plain, speedy, and adequate remedy in the ordinary course of the law. SeeNRS 34.170. Here, Clay has another remedy because a violation of NRS 172.095(2) can be reviewed on direct appeal from a final judgment of conviction. SeeNRS 177.045. Nonetheless, that remedy may not be adequate because any error in the grand-jury proceeding is likely to be harmless after a conviction. Lisle v. State, 114 Nev. 221, 224–25, 954 P.2d 744, 746–47 (1998). We therefore have recognized that “[a] writ of mandamus is an appropriate remedy for [violations of grand-jury procedures].” Lisle v. State, 113 Nev. 540, 551, 937 P.2d 473, 480 (1997), clarified on rehearing,114 Nev. 221, 954 P.2d 744 (1998).

Mandamus, however, is an extraordinary remedy. Accordingly, it is within the discretion of this court to determine if a petition will be considered. See Poulos v. Eighth Judicial Dist. Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982); see also State ex rel. Dep't of Transp. v. Thompson, 99 Nev. 358, 360, 662 P.2d 1338, 1339 (1983). In exercising that discretion, we must “consider[ ] whether judicial economy and sound judicial administration militate for or against issuing the writ.” Redeker v. Eighth Judicial Dist. Court, 122 Nev. 164, 167, 127 P.3d 520, 522 (2006), limited on other grounds by Hidalgo v. Eighth Judicial Dist. Court, 124 Nev. 330, 341, 184 P.3d 369, 377 (2008). “Where the circumstances establish urgency or strong necessity, or an important issue of law requires clarification and public policy is served by this court's exercise of its original jurisdiction, this court may exercise its discretion to consider a petition for extraordinary relief.” Schuster v. Eighth Judicial Dist. Court, 123 Nev. 187, 190, 160 P.3d 873, 875 (2007).

Applying these considerations, we exercise our discretion to consider the petition as to the alleged violation of NRS 172.095(2).² On that issue, the petition raises important legal questions as to what the prosecution must inform the grand jurors of under NRS 172.095(2) when the grand jury is considering whether to indict a person for a violation of NRS 200.508(1).

This court has held as a general proposition that “it is not mandatory for the prosecuting attorney to instruct the grand jury on the law.” Hyler v. Sheriff, Clark Cnty., 93 Nev. 561, 564, 571 P.2d 114, 116 (1977) (citing Phillips v. Sheriff, Clark Cnty., 93 Nev. 309, 311–12, 565 P.2d 330, 331–32 (1977)). Although the general proposition still holds true, see Schuster, 123 Nev. at 192, 160 P.3d at 876–77 (rejecting argument that prosecutor must instruct grand jury on legal significance of exculpatory evidence), there is a limited instance in which the prosecuting attorney is required to inform the grand jury as to the law. Almost a decade after our early pronouncement of the general proposition in Hyler, the Nevada Legislature enacted NRS 172.095(2). 1985 Nev. Stat., ch. 367, § 6, at 1029. This statute requires the prosecutor to “inform the grand jurors of the specific elements of any public offense which they may consider as the basis of the indictment” before seeking an indictment. To determine whether the prosecution failed to comply with NRS 172.095(2) by not informing the grand jurors as to the statutory definition of “physical injury,” we must first determine whether “physical injury” is an element of the charged offenses under NRS 200.508(1), which involves statutory interpretation.

“We review questions of statutory interpretation de novo.” Bigpond v. State, 128 Nev. ––––, ––––, 270 P.3d 1244, 1248 (2012). When interpreting a statutory provision, this court looks first to the plain language of the statute. Id. “This court avoids statutory interpretation that renders language meaningless or superfluous and if the statute's language is clear and unambiguous, this court will enforce the statute as written.” In re George J., 128 Nev. ––––, ––––, 279 P.3d 187, 190 (2012) (internal quotation marks and alterations omitted). “Likewise, this court will interpret a rule or statute in harmony with other rules and statutes.” Id. (internal quotation marks omitted).

Interpretation of NRS 200.508(1)

Applying these rules of statutory interpretation, we necessarily start with the statutory language. NRS 200.508(1) provides in relevant part that

[a] person who willfully causes a child who is less than 18 years of age to suffer unjustifiable physical pain or mental suffering as a result of abuse or neglect or to be placed in a situation where the child may suffer physical pain or mental...